"Don't Obligate Yourself"

“[The uninsured are] going into the [health care] market without the ability to pay for what [they] get, getting the health care service anyway as a result of the social norms…to which we’ve obligated ourselves so that people get health care,” explained Solicitor General Donald Verrilli.

So Scalia, the most prominent intellectual force on the right side of the court, believes not only that the ACA is unconstitutional, but apparently would like to get rid of the law that obligates hospitals to provide emergency care to the uninsured (the Emergency Medical Treatment and Active Labor Act, passed in 1986 and signed by Reagan). It is, I suppose, consistent in a glibertarian sort of way. The government is powerless to provide or enforce almost any positive good whatsoever, even to keep people from dying in the streets, although it's perfectly free to strip-search you for no reason whatsoever.

This morning in America’s highest court, freedom seems to be less about the absence of constraint than about the absence of shared responsibility, community, or real concern for those who don’t want anything so much as healthy children, or to be cared for when they are old. Until today, I couldn’t really understand why this case was framed as a discussion of “liberty.” This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril...And now we know the court is worried about freedom: the freedom to live like it’s 1804.

3 comments:

I don't think the point of Scalia's argument was that we should repeal the EMTALA (I don't know what his actual opinion on it is). He was belittling Verrilli's argument that the mandate was necessary because of it. If a mandate exceeds constitutional authority, passing another law which creates problems (relatively minor ones) absent a mandate is not sufficient to authorize it. It is almost certainly the case that Congress won't repeal EMTALA absent a mandate, because the costs of such treatment are such a minor component of healthcare costs. The real motivation for the mandate was making young healthy folks subsidize older folks. The community rating part of the bill is quite problematic without a mandate however, which is why they're hesitant to just strike down the mandate rather than the entire law.

TGGP is correct. Note as well that Scalia's critical comments were made in the context of arguments about severability, and what, if any, part of the ACA would be allowed to stand if the mandate were to be struck down as unconstitutional. EMTALA is not under review and is not likely to be; the Solicitor General's argument about the broad implications of striking down the mandate are. Scalia was not alone in asking Verrilli sharp questions on this point - Stephen Breyer, who is usually considered a liberal, also did.

If the mandate, and any or all of the rest of the ACA should be struck down by the Supreme Court (which is by no means a foregone conclusion) it will not be because "[t]he government is powerless to provide or enforce almost any positive good whatsoever, even to keep people from dying in the streets," and it will not be because "the court is worried about freedom: the freedom to live like it’s 1804." It will be because the ACA is a badly drafted piece of legislation, cobbled together to win the bare majorities necessary to pass it, and hastily passed by a Congress that didn't even have time to read it before the vote. The Administration took a hands-off approach and left the drafting of the bill to the Congressional leadership. The result was reminiscent of the old saw that a giraffe is a horse designed by a committee.

Congress could have structured the ACA to pass constitutional muster quite easily, but doing so was not politically expedient. It was not, for example, convenient to enact a tax to pay for universal health care in the way that the OASDI portion of the payroll tax pays for Social Security or Medicare portion of the payroll tax pays for Medicare. That would have been a straightforward use of Congress's taxing power, and I don't think even so staunch a conservative as Scalia would have disputed that.

But this is not what Congress did. Its refusal to call the penalty imposed on persons or employers that refuse to buy an approved insurance policy a tax has forced the administration to rely on the commerce clause as its source of Constitutional authority for the legislation. There is a body of recent case law limiting Congressional authority under the commerce clause e.g., U.S. v. Lopez (1995), U.S. v. Morrison (2000), and under other enumerated powers, e.g., Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001). Was no one in Congress or the Administration paying attention?

The Supreme Court's role is not to serve as a revising chamber for thoughtlessly written statutes. If it should overturn the ACA, the Administration and Congress will have the opportunity to rethink the issue. It will then be up to them to draft a replacement that will both command enough votes to pass and meet Constitutional standards. While doing this may be difficult, it's not impossible. It's their job. Maybe if they spent more time governing and less time campaigning, they might get it done.